Ontario Women’s Justice Network

Canada-U.S. Safe Third Country Agreement

If you or someone you know is thinking about applying for refugee status in Canada or the United States, it is important to know about the Canada-U.S. Safe Third Country Agreement. The Canada-U.S. Safe Third Country Agreement is a law in Canada and the United States.

The Agreement has been challenged in the Canadian courts, but the Canadian courts made a final decision to keep the agreement in 2008.

The Canada-U.S. Safe Third Country Agreement says that if you want to make a refuge claim, you must make the claim in the first country you arrive in (U.S. or Canada), unless an exception applies to you (see below). This means that you cannot apply for refugee status in Canada if you tried to come into Canada:

from the U.S. through a land border port of entry (includes arrivals by car, train, bus, or foot); or

through an airport, IF you are in transit through Canada, you have been ordered deported from the U.S. AND you have made a claim for refugee protection that was rejected by the U.S.

If you were denied refugee status in the United States, you cannot get refugee status in Canada. These same rules are applied in reverse to anyone who enters Canada before they go to the United States.

This agreement does not apply to Canada or U.S. citizens or to habitual residents of Canada or the U.S. who are not citizens of any country (“stateless persons”). Also, the Canada-U.S. Safe Third Country Agreement does not apply to people who can demonstrate that they fall into any one of the following categories of exceptions:

(1) Family member exceptions

The Agreement does not apply to people with family members in Canada who:

are Canadian citizens;

are permanent residents of Canada;

are protected under Canadian immigration law;

have been approved as refugees by the Immigration and Refugee Board of Canada;

have had their removal order removed on humanitarian and compassionate grounds;

have a Canadian Work Permit or a Canadian Study Permit; or

are over 18 years old and have a claim for refugee protection that is being determined by the Immigration and Refugee Board of Canada.

(2) Unaccompanied minors exception

The Agreement does not apply to people who are under 18 years old and:

are not with their parents or guardian;

do not have a spouse or common law partner; AND

do not have a parent or guardian who lives in Canada or the United States.

(ALL of these criteria must apply.)

(3) Document holder exception

The Agreement does not apply to people who:

have a Canadian visa, study permit, or work permit;

have a travel or admission document issued by the Canadian Government; or

do not need a visa to enter Canada but need a visa to enter the United States.

(4) Public interest exception

The Agreement does not apply to people who have done something that could result in the death penalty in the United States.

Some examples of how the Canada-U.S. Safe Third Country Agreement works:

Example #1

Law: The Canada-U.S. Safe Third Country Agreement says that refugee claimants seeking entry to Canada at a land border crossing from the United States cannot apply for refugee status in Canada.

Ms. Nakimera is from Uganda. She feels unsafe in her country because her life is being threatened for being a member of a group that the government does not like. She wants to go to Canada as a refugee.

When Ms. Nakimera came to North America, she had a connecting flight through the U.S. Ms. Nakimera landed and transferred planes in New York before she arrived at the airport in Toronto. When she landed in Toronto, she was stopped by the Canadian Border Services Agency and she asked to apply for refugee status. She was allowed to make a refugee claim in Canada. Even though Ms. Nakimera landed in the U.S. first, she arrived through an airport. Since she had not previously been denied refugee status in the U.S. AND was not in transit through Canada because she was being deported from the U.S. – the Canada-U.S. Safe Third Country Agreement did not exclude her from making a refugee claim in Canada.

Example #2

Law: The Canada-U.S. Safe Third Country Agreement says that anyone who is declined refugee status in the United States cannot get refugee status in Canada.

Ms. Sangsari is from Iran. She fears for her life in her country because she does not want to conform with the customs or religious laws for women in her country. She wants to go to the United States as a refugee.

When Ms. Sangsari landed in the United States, she applied for refugee status. The United States refused her application. Ms. Sangsari decided that she would try to get refugee status in Canada instead. When Ms. Sangsari arrived by train at the Canadian border, she asked to apply for refugee status. Canada refused her application. Although Canada will hear gender-based refugee claims, they rejected her claim because her claim had previously been rejected in the United States.

What does the Canada-U.S. Safe Third Country Agreement mean for women? 4, 5

In Canada, there are guidelines that determine how immigration processes should work. “Guideline 4 – Women Refugee Claimants Fearing Gender-related persecution” applies specifically to women who are claiming refugee status. Guideline 4 says that in addition to regular refugee claims, women can make claims when:

they are in danger because of the political views or actions of their family members;

their home country does not provide protection against domestic violence (violence by a family member or in the home)

they are especially in danger because they are women during a civil war

they are in danger because they did not do something that women are expected to do in their country. For example, refusing an arranged marriage.

The United States does not have guidelines specifically for women. The American refugee system has been criticized for helping even fewer women than the Canadian refugee system.

The history of the Canada-U.S. Safe Third Country Agreement in the Canadian courts6,7,8

In 2007, the Federal Court of Canada decided that the Canada-U.S. Safe Third Country Agreement was unconstitutional and overturned it. This means that the Agreement was no longer a law that was used in Canada.

The Agreement says that if the United States denies a refugee claim, Canada also has to deny the same claim. The United States often denies protection to women who are trying to escape gender-based problems like domestic violence. Therefore, Canada has to adopt the same standards as the United States when it comes to gender-based refugee claims from the United States. The Federal Court of Canada decided that the American standard was too low for Canada to adopt and overturned the agreement.

However, in 2008, the Federal Court of Appeal (a higher court) determined that the Canada-U.S. Safe Third Country Agreement was constitutional. Therefore, the Agreement was brought back into use.

In 2009, the Supreme Court of Canada (highest court) decided that the decision was final and that it would not review the Canada-U.S. Safe Third Country Agreement. The Canada-U.S. Safe Third Country Agreement is still in effect now.

Weblinks

Canada Border Services Agency
This website is run by the Government of Canada. It provides a description of the agreement and explains how to make a refugee claim at the Canada-U.S. border.

This website is run by an international human rights organization. It provides information about efforts to get the Canadian courts to decide that the agreement is not allowed by the Constitution of Canada.

Other Websites:

Information on OWJN is not legal advice

OWJN contains general legal information only. OWJN does not give legal advice. If you need legal advice, you should contact a lawyer, who can help you make decisions about your legal rights. You may be eligible for legal advice from a community Legal Aid clinic.